Published in Slate on March 2, 2018
On Thursday, Georgia legislators punished Delta Air Lines by rescinding a proposed jet-fuel tax cut from the state’s new tax law. The company’s crime? Opting to cut ties with the National Rifle Association last week following a public outcry in the aftermath of the Parkland, Florida, mass shooting. The episode has many potential lessons to offer about this partisan moment and our bitterly divided nation. One important thing to keep in mind, though, is this: Thanks to recent Supreme Court jurisprudence around corporate personhood, it is likely that Georgia violated Delta’s First Amendment rights to choose not to associate with the NRA.
How did we get to the point where free speech rights for corporations, so bitterly decried by progressives, might save a corporation caught in the crosshairs of conservatives? In 2012, a lawyer for cigarette maker R.J. Reynolds rose to argue before the United States Court of Appeals in Washington. He was there to challenge new, graphic warning labels for cigarette packages proposed by the Food and Drug Administration. Two years earlier and a few blocks away, the Supreme Court had bestowed greater free speech rights on corporations than ever before, ruling in Citizens United that corporations had the same rights as individuals to spend money in elections. But election spending had never been the brass ring for corporations fighting for speech rights. The real effort, happening in federal courts around the country, was focused on ways to use speech rights to fight regulation, from securities-disclosure requirements to anti-discrimination ordinances. In the years following Citizens United, corporations and trade groups brought nearly half of all the free speech challenges in federal courts.
The cigarette lawyer, Noel Francisco, is now the solicitor general of the United States, Trump’s top Supreme Court advocate. He won his warning case, and a key part of his argument was that the government cannot coerce speech. To win this argument, he cited a landmark World War II–era case about schoolchildren who had been forced to recite the Pledge of Allegiance. Justice Robert Jackson’s opinion that such coercion violated the students’ First Amendment rights was a paean to freedom: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics … or force citizens to confess … their faith therein.” After Francisco’s victory, multinational conglomerates refusing to warn customers about addictive products stood in the constitutional shoes of kids refusing to recite the pledge.
Because of Citizens United and cases like Francisco’s, the opposition to corporate personhood has broad appeal and especially unites progressives. But we may be in a moment when corporate personhood has come to our rescue.
In the wake of the shooting, many corporations have turned their backs on the NRA. Delta is the first company to face explicit retaliation for its posture, though, and is thus possibly situated to take a critical free speech stand.
On Monday, Georgia Lt. Gov. Casey Cagle lashed out at Delta, announcing he would seek to kill broader tax legislation that also would provide the company a $50 million tax break on jet fuel. He made his rationale clear on Twitter, saying the benefit would not be returned unless Delta “changes its position and fully reinstates its relationship with @NRA.” Cagle concluded: “Corporations cannot attack conservatives and expect us not to fight back.” On Thursday, the Georgia Legislature passed the larger tax measure, now stripped of the jet-fuel cut, and the GOP governor announced he would sign it.
The decision to offer or rescind tax benefits is usually within the discretion of lawmakers. But states cannot limit government benefits—whether free public education or tax breaks—to those who adhere to a particular ideological orthodoxy. That is the free speech right protected by the Pledge of Allegiance case. There are narrow exceptions to this rule. The government can fund private speakers to amplify a government viewpoint (as with anti-smoking campaigns) and can condition spending to achieve policy goals (as with subsidies for energy-saving windows). The lines can be hard to draw in the gray areas. But the mortgage deduction can’t be given only to those who voted for Trump, and a public school can’t expel a kid for wearing a “Black Lives Matter” armband.
If the legislature punished Delta by taking away a state benefit because of its stand on the NRA, it would be a clear violation of the First Amendment’s restriction on viewpoint-based discrimination. Should it matter that the tax benefits were new? Probably not. Georgia could not, for example, make admission to a new state college exclusive to NRA supporters. The reason we don’t see many such cases is a matter not of principle but of evidence. There might be a host of reasons why a provision in a proposed bill gets yanked, and courts would not want to assume legislators have unconstitutional motives. But retaliation for a disfavored viewpoint is a constitutional harm. And while it might be difficult to prove sometimes, it is not here. Just reread the lieutenant governor’s tweet.
And if we know anything about the First Amendment, it is that “no official, high or petty” can force allegiance to the flag. Or to the NRA. Corporations gained rights by standing in the constitutional shoes of children. Now they should use those rights to stand with children against the gun lobby and any state government that might seek to punish them for that stance.